Elsas v. Preston et al
ORDER denying 95 Motion for Attorney Fees; Plaintiff to submit proposed Final Judgment as set forth in Order. Signed by Honorable David C. Bramlette, III on 8/4/2017 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NANCY ELSAS, Individually, as
personal representative of the
Estate of Louis Jacob Elsas II,
and as Trustee of the Residuary
Trust of the Louis Jacob Elsas II
Management Trust U/A, Sept. 28, 2011
CIVIL ACTION NO. 5:15-cv-28(DCB)(MTP)
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Plaintiff’s Motion for
Determination of Reasonable Attorney’s Fees (docket entry 95), and
on the Defendant’s Response thereto.
Having carefully considered
the motion and response, the memoranda of the parties and the
applicable law, and being fully advised in the premises, the Court
finds as follows:
Summary Judgment seeking damages from the defendant for breach of
contract, and found the proper measure of damages to be $500,000,
plaintiff’s mineral interests in Wilkinson County, Mississippi.
Because the purchase price was easily ascertained by reference to
the Purchase and Sale Agreement (“PSA”), and because such sum will
fully compensate the plaintiff for its loss under the terms of the
equitable remedy of specific performance.
The Court also ordered
the parties to brief the issue of attorney’s fees and costs, but
the Court found the briefing inadequate, and ordered further
briefing which is now before the Court.
Under the so-called “American Rule,” parties are required to
authority” to the contrary.
Buckhannon Bd. & Care Home, Inc. v.
West Virginia Dept. of Health and Human Res., 532 U.S. 598, 602
Whether a party may recover attorney’s fees under a
statute is a question of law for the Court. Walker Int’l Holdings,
Ltd. v. Republic of Congo, 415 F.3d 413, 416 (5th Cir. 2005).
Where, as here, federal jurisdiction is based on diversity, state
law controls the award of attorneys’ fees.
Co. v. Chevron Pipe Line Co., 205 F.3d 222, 230 (5th Cir. 2000).
The parties’ Purchase and Sale Agreement provides that “[t]he
parties agree and acknowledge that all provisions of this Agreement shall
be governed by and construed in accordance with the laws of the State of
PSA, ¶ 11(a).
The Court shall therefore apply Texas law.
Specifically, federal courts within the Fifth Circuit applying
Citigroup Inc. v. Fed. Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011).
In the absence of a binding decision from the Supreme Court of
Texas, this Court may look to decisions of Texas intermediate
intermediate courts are not controlling, and this Court must
ultimately make a judgment as to how the Supreme Court of Texas
would rule on the issue.
See United Teacher Assocs. Ins. Co. v.
Union Life Ins. Co., 414 F.3d 558, 565-66 (5th Cir. 2005).
Texas law provides that a litigant can recover attorney’s fees
“only if specifically provided for by statute or contract.”
v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011)(citing Intercontinental
Grp. P’ship v. KB Home Lone Start L.P., 295 S.W.3d 650, 653 (Tex.
The plaintiff contends that “[t]he PSA provides that if
either party to the contract is required to take legal action as a
result of breach, attorney’s fees will be awarded to the prevailing
Attorney’s Fees (docket entry 95), ¶ 2.
The plaintiff relies on ¶
10 of the PSA, which provides the following:
By Buyer. Except as specifically provided herein,
Buyer agrees to indemnify and hold Seller, its members,
shareholders, officers, directors, employees, and agents
harmless from all claims, losses, costs, liabilities, and
expenses arising out of or resulting from any
misrepresentation or breach of any warranty, covenant, or
agreement of Buyer contained in this Agreement.
INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH DUTIES,
OBLIGATIONS, OR LIABILITIES, OR SUCH CLAIMS LIABILITIES,
LOSSES, COSTS, OR EXPENSES ARISE OUT OF (I) NEGLIGENCE
(INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT
NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY
NOT INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF
ANY INDEMNIFIED PARTY, OR (ii) STRICT LIABILITY. THE
PARTIES AGREE THAT THE FOREGOING COMPLIES WITH THE
EXPRESS NEGLIGENCE RULE AND IS CONSPICUOUS.
PSA, ¶ 10.
However, an indemnitor cannot be liable for attorney’s fees
unless the indemnity agreement expressly so provides.
Terminals, Inc. v. Ryder System, Inc., 326 F.Supp. 881, 887 (S.D.
Tex. 1971)(citing W.R. Grimshaw Co. v. Martin Wright Electric Co.,
283 F.Supp. 628 (W.D. Tex. 1968), reversed on other grounds, 419
F.2d 1381 (5th Cir. 1969), cert. denied, 397 U.S. 1022 (1970);
Mitchell’s Inc. v. Friedman, 303 S.W.2d 775 (1957)).
attorney’s fees only if specifically provided for by statute or
contract, and because the plaintiff fails to show any contract or
statutory provision allowing recovery of fees in this case, the
plaintiff’s motion for attorney’s fees must be denied.
plaintiff is, however, entitled to file a Bill of Costs with the
Clerk of Court.1
Pursuant to Local Uniform Civil Rule 52(a), counsel for
plaintiff shall submit a proposed Final Judgment to the undersigned
District Judge via electronic mail. The plaintiff’s attorney shall
also provide a copy to defendant’s counsel.
the Court has entered a Final Judgment, the plaintiff must file her
Bill of Costs not later than 30 days after entry of judgment.
Federal Rule of Civil Procedure 54(d)(1) states
There is no requirement that costs be sought by motion.
Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 930 (8th Cir. 2011);
Mosley v. Geico Ins. Co., 2015 WL 12942082, at *1 (S.D. Miss. March
that “costs - other than attorney’s fees - should be allowed to the
prevailing party” in an action.
“The clerk may tax costs on 14
“On motion served within
the next 7 days, the court may review the clerk’s action.”
Within 30 days from entry of judgment, the plaintiff shall
file her Bill of Costs in accordance with the requirements of Local
Uniform Civil Rule 54 and 28 U.S.C. § 1920 governing the taxation
Once the Clerk taxes costs after waiting the requisite
14 days, the burden is on the defendant to file a motion with the
Court within 7 days if it wishes the Court to review the Clerk’s
See LaRavia v. Cerise, 512 Fed.Appx. 397, 398 (5th Cir.
2013)(discussing procedure to challenge taxation of costs.”);
Cashman Equip. Corp. v. Rozel Operating Co., 2011 WL 2437601, at *1
(M.D. La. June 17, 2011)(“Rule 54(d) clearly contemplates that the
non-prevailing party would bring the motion to challenge a bill of
requirement that the prevailing party file a motion).
prevailing party will be awarded costs.”
Pacheco v. Mineta, 448
F.3d 783, 793 (5th Cir. 2006). The Fifth Circuit “has held that the
prevailing party is prima facie entitled to costs....” Id. at 79394 (citation and quotation marks omitted). There is no requirement
that the costs awarded be associated solely with, or requested in,
a motion for summary judgement filed by the party seeking costs;
nor is it necessary for the Court’s Summary Judgment Order to
“find” or “assess” costs. Federal law provides, in pertinent part,
that the Clerk may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making
copies and any materials where the copies are necessarily
obtained for use in the case2;
(5) Docket fees under section 1923 of this title; and
(6) Compensation of court appointed experts, compensation
of interpreters, and salaries, fees, expenses and costs
of special interpretation services under section 1823 of
28 U.S.C. § 1920.
Determination of Reasonable Attorney’s Fees (docket entry 95) is
FURTHER ORDERED that the plaintiff shall submit a proposed
Final Judgment to the undersigned District Judge via electronic
mail within fourteen (14) days from date of entry of this Order,
Although the prevailing party need not identify every xerox
copy made for use in the legal proceedings, it must make some showing
that “reproduction costs necessarily result from that litigation.”
Fogelman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991).
objections to the form of the proposed Final Judgment must be made
within ten (10) days from the date of delivery of the proposed
judgment to defendant’s counsel.
SO ORDERED, this the 4th day of August, 2017.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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